Opinion of Advocate General Emiliou delivered on 15 December 2022.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2022:996
• Date: 15 December 2022
• Celex Number: 62020CC0468
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

EMILIOU

delivered on 15 December 2022(1)

Case C‑468/20

Fastweb SpA,

Tim SpA,

Vodafone Italia SpA,

Wind Tre SpA

v

Autorità per le Garanzie nelle Comunicazioni,

joined parties:

Telecom Italia SpA,

Vodafone Italia SpA,

Associazione Movimento Consumatori,

U.Di.Con – Unione per la Difesa dei Consumatori,

Wind Tre SpA,

Assotelecomunicazioni (Asstel),

EOLO SpA,

Coordinamento delle associazioni per la tutela dell’ambiente e dei diritti degli utenti e consumatori (Codacons),

Associazione degli utenti per i diritti telefonici – A.U.S. TEL ONLUS,

Altroconsumo,

Federconsumatori

(Time frame for billing)

(Request for a preliminary ruling from the Consiglio di Stato (Council of State, Italy))

(Reference for a preliminary ruling – Electronic communications – Consumer protection – National legislation granting the national regulatory authority the power to impose on telephone service providers a time frame for the renewal of offers and for billing – Harmonised regulatory framework – Partial and minimum harmonisation – Articles 49 and 56 TFEU – Free movement of services – Principle of proportionality – Principle of non-discrimination – Principle of equal treatment)

I. Introduction

1. In 2016, the Autorità per le Garanzie nelle Comunicazioni (the Italian Communications Regulator Authority; ‘the AGCom’) adopted a decision introducing certain measures aimed at protecting users of fixed and mobile telephony services, by promoting transparency in the market and enabling price comparisons of those services. By its request for a preliminary ruling, the Consiglio di Stato (Council of State, Italy) enquires as to the compatibility of some of those measures with EU law.

2. In particular, the referring court asks the Court whether a Member State’s authority can lawfully impose certain restrictions on telephone operators with regard to the time frames for the renewal of offers and the billing of fixed and/or mobile telephone services. Would such a measure be in compliance with the principles relating to the free movement of services laid down in Articles 49 and 56 TFEU, the provisions of the directives constituting the so-called harmonised regulatory framework for electronic communications, and some general principles of EU law such as equality, proportionality and non-discrimination?

3. In this Opinion, I will explain why such a national legislation is compatible with EU law.

II. Legal framework

A. European Union law

4. In 2002, the EU legislature adopted the so-called ‘Telecoms Package’ which included, inter alia, four ‘specific’ directives regulating various aspects of electronic communications. The relevant provisions of those directives, as amended in 2009, (2) are set out below. Those four directives – which have now been repealed (3) but are nevertheless still applicable ratione temporis in the main proceedings – will be collectively referred to as the ‘harmonised regulatory framework’ in this Opinion.

5. Article 8(1) and (4) of Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive) (4) provided:

‘1. Member States shall ensure that national regulatory authorities are empowered to impose the obligations identified in Articles 9 to 13a.

…

4. Obligations imposed in accordance with this Article shall be based on the nature of the problem identified, proportionate and justified in the light of the objectives laid down in Article 8 of Directive 2002/21/EC (Framework Directive). …’

6. Article 3(1) of Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive) (5) provided:

‘Member States shall ensure the freedom to provide electronic communications networks and services, subject to the conditions set out in this Directive. …’

7. Under the terms of Article 8(1), (2), (4) and (5) of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) (6):

‘1. Member States shall ensure that in carrying out the regulatory tasks specified in this Directive and the Specific Directives, the national regulatory authorities take all reasonable measures which are aimed at achieving the objectives set out in paragraphs 2, 3 and 4. Such measures shall be proportionate to those objectives.

…

2. The national regulatory authorities shall promote competition in the provision of electronic communications networks, electronic communications services and associated facilities and services …

…

4. The national regulatory authorities shall promote the interests of the citizens of the European Union by inter alia:

…

(b) ensuring a high level of protection for consumers in their dealings with suppliers …;

…

(e) addressing the needs of specific social groups, in particular disabled users, elderly users and users with special social needs;

…

5. The national regulatory authorities shall, in pursuit of the policy objectives referred to in paragraphs 2, 3 and 4, apply objective, transparent, non-discriminatory and proportionate regulatory principles by, inter alia:

…

(c) safeguarding competition to the benefit of consumers …;

…

(e) taking due account of the variety of conditions relating to competition and consumers that exist in the various geographic areas within a Member State;

…’

8. Article 20(1) and (2) of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) (7) stated:

‘1. Member States shall ensure that, when subscribing to services providing connection to a public communications network and/or publicly available electronic communications services, consumers, and other end-users so requesting, have a right to a contract with an undertaking or undertakings providing such connection and/or services. The contract shall specify in a clear, comprehensive and easily accessible form at least:

…

(d) details of prices and tariffs, the means by which up-to-date information on all applicable tariffs and maintenance charges may be obtained, …;

…

2. Member States shall ensure that subscribers have a right to withdraw from their contract without penalty upon notice of modification to the contractual conditions proposed by the undertakings providing electronic communications networks and/or services. … Member States shall ensure that national regulatory authorities are able to specify the format of such notifications.’

9. Article 21(1) of Directive 2002/22 provided:

‘Member States shall ensure that national regulatory authorities are able to oblige undertakings providing public electronic communications networks and/or publicly available electronic communications services to publish transparent, comparable, adequate and up-to-date information on applicable prices and tariffs … National regulatory authorities may specify additional requirements regarding the form in which such information is to be published.’

B. National law

10. Article 2(12)(h) and (l), and (37) of Legge 14 novembre 1995, n. 481 – Norme per la concorrenza e la regolazione dei servizi di pubblica utilità. Istituzione delle Autorità di regolazione dei servizi di pubblica utilità (Law No 481 of 14 November 1995 – Rules relating to competition and the regulation of public utility services. Creation of regulatory authorities for public utility services; ‘Law No 481/1995’), sets out the tasks assigned to regulatory authorities for public utility services. Inter alia, that provision states:

‘(12) Each authority, in order to pursue the aims set out in Article 1, carries out the following tasks:

…

(h) issues directives concerning the production and the provision of services by the entities providing those services, defining the general quality standards for the services as a whole and the specific quality standards for the individual service guaranteed for users, having consulted the operators of the service and the representatives of users and consumers, if necessary differentiating them by sector and type of service; such decisions shall have the effects referred to in paragraph 37;

…

(l) publicise and disseminate information on the conditions of service performance to ensure maximum transparency, competitiveness and the possibility for intermediate or final users of making more informed choices.

(37) … the decisions of the authorities referred to in paragraph 12(h) shall amend or supplement the service regulations.’

11. Pursuant to Article 1(6)(b)(2) of Legge 31 luglio 1997, n. 249 – Istituzione dell’Autorità per le garanzie nelle comunicazioni e norme sui sistemi delle telecomunicazioni e radiotelevisivo (Law No 249 of 31 July 1997 – Creation of the Italian Communications Regulator and rules on telecommunications and broadcasting systems; ‘Law No 249/1997’) the regulatory authority has the power to issue:

‘directives concerning the general service quality standards and the adoption, by each operator, of a service charter laying down minimum standards for each business segment’.

12. Articles 13, 70 and 71 of Decreto legislativo 1 agosto 2003, n. 259 – Codice delle comunicazioni elettroniche (Legislative Decree No 259 of 1 August 2003 – Electronic Communications Code) are intended to transpose Article 8 of Directive 2002/21 and Articles 20 and 21 of Directive 2002/22.

III. Facts, national proceedings and the questions referred

13. On 15 March 2017, the AGCom – the authority charged by the Italian Government with, inter alia, carrying out the regulatory tasks provided for in Directives 2002/19, 2002/20, 2002/21 and 2002/22 – adopted Decision No 121/17/CONS (‘the...